Advertisment Regulation in India

8/3/2019 Advertisment Regulation in India

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Advertisement Regulations in India

TABLE OF CONTENTS

Ch. No. Topic Page No.

1 Introduction 3

2 Statutory Regulations and Regulator 4

3 ASCI code 6

4 Recourse for misleadingadvertisements

8

5 Conclusion 9

6 Bibliography 10



Advertising Regulations In India

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1.0 INTRODUCTION

Advertising is an important and legitimate means for a seller to awaken interest in his

products. Advertising industry in India is on the expansion spree for the last few years and

has become a serious and big business growing at considerable rate. However, the growth

of this industry is affected by the prevalent malpractices carried out by advertisers in order

to lure the consumers and sustaining an edge over the competitors.

Advertisement, often described as commercial speech, enjoys its protection under

Article 19(1) (a) of the Indian Constitution. As a facet of the right to information, it facilitates

the dissemination of information about the sellers and their products. However, the manner

of facilitation is subject to a number of statutory provisions. This bulletin attempts to give an

overview of the various regulations and their efficacy in monitoring the practices prevalentin the advertisement world.




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2.0 STATUTORY REGULATIONS AND REGULATOR

Under the Indian legal regime, Cable Television Networks (Regulation) Act, 1955

(³Act´), the Press Council of India Act, 1978 (³PCIA´), and Cable Television Networks

(Amendment) Rules, 2006 (³Rules´) - among others - are the principal legislations which

control the content of advertisements to ensure that they should not offend morality,

decency and religious susceptibilities of the consumers. Some of the prominent, prohibitory

legal provisions that regulate advertising are:

Obscene publication or advertisement of a lottery under the Indian Penal Code.1

Harmful publication2 under the Young Persons (Harmful Publications) Act, 1956.

The indecent representation of women under the Indecent Representation of Women

(Prohibition) Act, 1986.

Use of report of test or analysis for advertising any drug or cosmetic under the Drugs

and Cosmetics Act, 1940.

Inviting transplantation of organs under the Transplantation of Human Organs Act,

1994.

Advertisement of magical remedies of diseases and disorders under the Drugs and

Magical Remedies (Objectionable Advertisements), Act, 1954.

Advertisements related to prenatal determination of sex under the Prenatal

Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

Advertisements of cigarettes and other tobacco products under the Cigarettes and

other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and

Commerce, Production, Supply and Distribution) Act, 2003.

Any political advertisement forty hours prior to polling time under the

Representation of People Act, 1951.




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For long, advertisements were regulated by the courts, government, tribunals, or

police that depended upon the nature of each case. Additionally, absence of a single

comprehensive legislation created a lot of confusion in terms of a proper code to follow by

the industry and the authority to regulate or guide the pattern of advertising. In 1985, the

Advertising Standards Council of India (³ASCI´), a non statutory tribunal, was established

that created a self regulatory mechanism of ensuring ethical advertising practices. ASCI

entertained and disposed off complaints based on its Code of Advertising Practice (³ASCI

Code´). On certain occasions,3 however, the ASCI orders were set aside by courts as ASCI

being a voluntary association was considered usurping the jurisdiction of courts when it

passed orders against non-members.

Gradually, the ASCI Code received huge recognition from the advertising industry.

The warnings issued by ASCI to the advertisers against the misleading advertisements

were gradually being accepted by the advertisers and the advertisements were actually

stopped being aired or were modified significantly to comply with the prescribed ASCI

Code.

Nonetheless, the ever increasing role of ASCI in regulating advertising practices in

India was felt by the government too and in August 2006, the ASCI Code was made

compulsory4 for TV advertisements. The Rules were also amended as follows ³No

advertisement which violates the Code for Self-Regulation in Advertising, as adopted by the

ASCI, Mumbai for public exhibition in India, from time to time, shall be carried in the cable

service.´ This move has provided a binding effect on the ASCI Code.




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3.0 ASCI Code

The ASCI Code aims to protect the legitimate interests of the consumers by

regulating patently false, misleading, and objectionable advertisements broadcast on

television, radio, and internet by advertisers, media, and advertising agencies.

The key objectives of ASCI code is to ensure that advertisements must -

Make truthful and honest representations and claims which is essential to prohibit

misleading advertisements;

Not be offensive to public decency or morality;

Not promote products which are hazardous or harmful to society or to individuals,

particularly minors; and

Observe fairness in competition keeping in mind consumer¶s interests.

Regardless of the medium, advertisements must be truthful and all descriptions,

claims, and comparisons which relate to objectively ascertainable facts should be capable

of substantiation. Advertisers and advertising agencies are required to produce such

substantiation as and when called upon by ASCI. For example, products cannot be

described as ³free´ where there is any direct cost to the consumer other than the actual cost

of any delivery, freight, or postage. Where such costs are payable by the consumer, a clear

statement that this is the case shall be made in the advertisement. The advertisers are

generally issued warnings to stop airing the advertisements which violate the existing ASCI

Code.

For instance, in a complaint against the TV commercial (³TVC´) of Pond¶s Age

Miracle Cream, ASCI considered the projection of the product in various medium. The TVC

asked a question to its viewers ± ³Can your cream do this in just 7 days? Take up Pond¶s

Age Miracle 7 days challenge. If in 7 days you don¶t start looking young, then you will get

your money back ́. The print advertisement made a statement - ³Pond¶s Age Miracle cream

does what no other anti-ageing cream can. It reduces age spots and brings about a visible

change in wrinkles in just 7 days. If it doesn¶t work, you get your money back ́. This became

apparent by comparing the two versions that the claim made therein was supported by a

clinical test carried out on an ³untreated skin´ i.e. on consumers who were not using any

cream. Therefore, assuming that the tests were relevant, the mere fact of the advertiser

targeted at the consumer with a question ³Can your cream do this?´ assumes consumers




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currently using some other cream. The ASCI decided that the claim made therein was false,

misleading, directly denigrating and discrediting the efficacy of the similar products

available in the market place. ASCI issued a warning to Ponds and the ad was stopped and

removed from air and print media.




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4.0 RECOURSE FOR MISLEADING ADVERTISEMENTS

Under the ASCI Code, complaints against the advertisements can be made by any

person who considers them to be false, misleading, offensive, or unfair. The complaints are

evaluated by an independent Consumer Complaints Council (³CCC´) which has 21

members - 12 from general public and 9 from advertising practitioners. There are three

types of complaints handled by ASCI (a) Complaints from the general public including

government officials, consumer groups, etc., (b) Suo Moto complaints from the member of

the ASCI Board, CCC, or the Secretariat and, (c) Intra industry i.e. complaints from one

advertiser against another.

On receipt of a complaint, the Secretariat acknowledges the complaint and requests

the advertiser or agency to provide comments in respect of the complaint. The CCC usually

decides upon the complaints within a period of 4 to 6 weeks once the party concerned is

afforded an opportunity of presenting its case. If the complaint is upheld, then the advertiser

and its agency are informed of the CCC decision within 5 working days. The advertiser is

given 2 weeks to comply with the CCC decision. Non-compliant advertisements are

published in ASCI¶s Media quarterly release on an all India basis.

Similar to the ASCI Code, section 6 of the Act prohibits the transmission or re-

transmission of any advertisement through a cable service unless they are in conformity

with the ASCI Code. Further, Rule 7 of the Rules postulates that any advertisement which

derides any race, caste and tends to incite people to crime, cause disorder or are indecent

or vulgar are prohibited under the ASCI Code. Section 16 of the Act prescribespunishment5 to the advertisers as well. However, the punishments are not usual, but the

warnings against the advertisers are issued by the authorized officers for the display of

advertisements which violates any of the provisions of the Act and the Rules. For example,

warnings were issued to MTV which aired a vulgar advertisement of a product ³New Axe

Deodorant´ directing the channel to run an apology scroll for three days.

Further, the PCIA is guided by ³Norms of Journalistic Conduct´ in the regulation of

advertisements and can hold enquiry into complaints against a newspaper and may warn,

admonish or censure the newspaper, journalist, or the editor.




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5.0 CONCLUSION

At present, there are numerous regulations monitoring the display of obscene and

misleading advertisements in India. However, it is not uncommon to see various

advertisements which are patently false and misleading promoting dubious products and

making unsubstantiated claims. In reality, most of these ads are ignored by the consumers

and go unnoticed by the statutory bodies. So, in order to enforce the regulations the need of

the hour is whenever an advertisement breaches public confidence, the regulators should

take immediate action against the violators. It is crucial that ASCI should be given a binding

force for regulating all kind of advertising modes such as print, electronic etc. similar to the

existing television advertisements which will prevent the newspapers and advertising

agencies from violating the existing law.

The proposed Broadcasting Services Regulation Bill, 2007 is also expected to bring

about a major change in the regulatory mechanism of advertising in India with its content

code, a scheme of broadcasting content certification and stringent penalties on

contravention of its provisions. However, this Bill is also being debated for being arbitrary

and completely vesting the command and control of the electronic media with the

government.




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BIBLIOGRAPHY

www.ascionline.org

www.isanet.org.in

www.psalegal.com

www.indiannewspapersociety.org

www.mediasarkar.com

www.indiantelevision.com

www.ipapharma.org

www.aaaindia.org

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Advertisment Regulation in India